SZDRC v Minister for Immigration
[2006] FMCA 533
•6 April 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDRC & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 533 |
| MIGRATION – Protection visa application – judicial review of the delegate’s decision – decision previously affirmed by the Refugee Review Tribunal – upheld by the Federal Magistrates Court, Federal Court and High Court – new application dismissed as an abuse of process. |
| Federal Magistrates Court Rules 2001 (Cth), r.13.10 Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.91X |
| Kosi v Minister for Immigration [2003] FMCA 340 NBGZ v Minister for Immigration [2005] FCAFC 119 |
| First Applicant: | SZDRC |
| Second Applicant: | SZDRD |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG3085 of 2005 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 6 April 2006 |
| Delivered at: | Sydney |
| Delivered on: | 6 April 2006 |
REPRESENTATION
| Applicants: | Applicants appeared in person with the aid of a Gujarati interpreter |
| Advocate for the Respondents: | Ms B Griffin |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The first respondent’s notice of motion filed on 13 January 2006 is upheld.
The application for judicial review filed on 24 October 2005 is dismissed.
The Court directs that no further application by the applicant to review the decision of the Refugee Review Tribunal (of D Kelleghan, File No: NO3/47832) made on 8 April 2004 and handed down on 4 May 2004, or the decision of the delegate of the Minister for Immigration (of
K Barber, File No: CLF2003/58988) made on 4 November 2003, is to be accepted for filing without leave of this Court.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,800.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3085 of 2005
| SZDRC & SZDRD |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Proceedings
By a notice of motion filed on 13 January 2006, the first respondent seeks an order that the applicants’ application be dismissed on the basis that:
a)The applicants are estopped from bringing the proceedings; or in the alternative,
b)The proceedings amount to an abuse of the Court’s process for the purposes of r.13.10(c) of the Federal Magistrates Court Rules 2001 (Cth).
The first respondent also seeks that no further application by the applicants to review the decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 4 May 2004 be accepted for filing by the Court registry except by leave of the Court.
For the purposes of this notice of motion, the first respondent tendered and applied for the following affidavits of Brooke Marie Griffin to be admitted into evidence:
a)Affidavit sworn on 10 January 2006 (“first affidavit of Ms Griffin”);
b)Affidavit sworn on 20 March 2006 (“second affidavit of Ms Griffin”).
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) filed in the Sydney registry of the Federal Magistrates Court on 24 October 2005. That application was for review of a decision of the delegate of the Minister for Immigration, made on 4 November 2003, refusing to grant the applicants a Protection (Class XA) Visa. The delegate’s decision is identified by file no: CLF2003/58988.
The applicants in these proceedings are not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) (“the Act”) and have been given the pseudonyms “SZDRC” (applicant husband) and “SZDRD” (applicant wife).
Background
Brief background material is contained in the Tribunal decision and indicates that the applicants are husband and wife, and citizens of India. They arrived in Australia on 18 September 2003 and on
1 October 2003 they lodged an application for a Protection (Class XA) Visa under the Act, with the Department of Immigration. On
4 November 2003, a delegate of the Minister refused to grant a Protection (Class XA) Visa and on 27 November 2003, the applicants applied for review of the delegate’s decision by the Tribunal (first affidavit of Ms Griffin, p.5).
The applicants claim they lived in a Muslim dominated neighbourhood in the State of Gujarat and that because of the applicant husband’s involvement in the Bharatiya Janata Party (BJP) there, they were continually attacked by Muslim extremists. These attacks on themselves and their property were carried out with impunity, and the police did not take any action to help them (affidavit of Ms Griffin, p.8).
Litigation history
Ms Griffin, solicitor for the respondents, prepared a convenient summary of the applicants’ litigation history in her first affidavit.
I adopt paragraphs 3 to 10 for the purposes of this judgment:
3.I refer to the Application filed in the name of the applicant in the Federal Magistrates Court (“this Court”) on 24 October 2005, seeking review of a decision of the Refugee Review Tribunal (“the Tribunal”) handed down 4 May 2004. The decision of the Tribunal affirmed that of the delegate of the first respondent dated 4 November 2003, refusing the applicants’ application for refugee status.
4.On 26 May 2004 an application for judicial review under s.39B of the Judiciary Act 1903 was filed in the name of the applicant in this Court. Pursuant to s.91X of the Migration Act 1958, the applicants were given the pseudonyms “SZDRC and SZDRD”.
5.On 22 December 2004, Smith FM made orders dismissing the Application.
6.On 5 January 2005 a Notice of Appeal from the above decision was filed in the New South Wales District Registry of the Federal Court of Australia in the name of the applicants.
7.On 24 March 2005, Wilcox J of the Federal Court of Australia made orders dismissing the appeal.
8.On 18 April 2005 an Application for Special Leave to Appeal from the judgment and orders of the Federal Court of Australia was filed in the name of the applicants in the Sydney Registry of the High Court of Australia.
9.On 6 October 2005, Gummow and Kirby JJ dismissed the Application for Special Leave to Appeal.
10.On 24 October 2005 an Application under s.39B of the Judiciary Act 1903, was filed in the name of the applicants in the Sydney Registry of this Court, seeking review of the same decision of the Tribunal handed down 4 May 2004.
Respondent’s submissions
Ms Griffin provided written submissions in support of her application and I adopt paragraphs 3 to 15 for the purposes of this judgment:
3.The first respondent now seeks an order that the application be dismissed on the basis that the proceedings amount to an abuse of the Court’s process for the purposes of Rule 13.10(c) of the Federal Magistrates Court Rules.
4.Under the Migration Act 1958 (‘the Act’), merits review of a delegate's decision is available, provided a valid application for review is made in accordance with s.412. The applicant in these proceedings has sought review of the delegate’s decision by application to the Tribunal. The Tribunal performed its statutory functions by completing the review and affirming the decision of the delegate pursuant to its powers in s.415. The first respondent submits the decision of the Tribunal has overtaken and, for practical purposes, replaced the decision of the delegate.
5.The Minister and her delegates are functus officio to make decisions by way of reconsideration or further exercise of the power to grant or refuse visas under s 65, in circumstances where there has been merits review under Part 7 of the Act in relation to a protection visa application: SZGMZ v MIMIA [2005] FMCA 1549 at [23]
6.It follows that the decision which the applicant now seeks to challenge is not an operative decision. It has been overtaken by the decision of the Tribunal which was held by this Court, the Federal Court and the High Court to contain no reviewable error, as stated above at paragraphs 2.3, 2.4 and 2.5.
7.Further, the Full Court of the Federal Court held in Zubair v MIMIA that review by the Tribunal is available even though the decision-maker at first instance may have made a decision which is legally ineffective. An invalid decision of the first respondent is able to be reviewed by the Tribunal and the Tribunal is able to “cure” the defect in the delegate’s decision: Zubair at [28]. The applicants’ pursuit of merits appeal to the Tribunal rendered legally irrelevant the validity of the delegate’s decision: SZGKR & Anor v MIMIA [2005] FMCA 1316 at [25].
8.If the applicant did in fact have genuine concerns about the delegate’s decision, there is no reason why such an argument could not have been put in the applicants’ previous challenges to the Tribunal’s decision (as was done by the applicant in Zubair v MIMIA, who challenged both the delegate’s cancellation and subsequent review decision of the Migration Review Tribunal in the same proceeding).
9.Where res judicata applies, it is a complete bar to a new claim because the cause of action is extinguished by the first judgment and the Court does not have a discretion to ameliorate the application of the doctrine.
10.It is submitted that the dismissal order made by Gummow and Kirby JJ, has the effect that the applicants are precluded from bringing the current proceedings by reason of the operation of the doctrine of res judicata and issue estoppel.
11.Their Honours’ order was a final order that resolved a controversy between the applicants and the respondents. The cause of action that was dismissed was in substance the same as that which the applicants seek to raise again in the current proceeding.
12.Alternatively, it is the first respondent’s submission that even if this matter were not governed by the doctrines of res judicata or issue estoppel, the proceedings are barred by the operation of the doctrine of Anshun estoppel.
13.Insofar as any of the grounds that the applicants now seek to rely on are different from the grounds raised previously, the doctrine of Anshun estoppel applies, as they are grounds that “properly belonged to the subject of the earlier litigation and which the parties, exercising reasonable diligence, might have brought forward at the time of the earlier litigation.”
14.In the absence of special circumstances, the doctrine of Anshun estoppel precludes the applicant from relying now upon arguments that could have been advanced in the previous proceedings.
15.It is the first respondent’s submission that to the extent that the grounds in the current application were not actually raised in the applicants’ previous proceedings, they could have been so raised. In addition, the applicants have not established special circumstances that would justify the Court exercising its discretion not to apply the Anshun principle.
Reasons
The applicant husband appeared before me for directions on
29 November 2005 where it was foreshadowed that the first respondent would seek to have his application dismissed on an interlocutory basis on the ground that the proceedings are an abuse of process of the Court. I granted the applicant husband leave to file an amended application together with written submissions to meet the first respondent’s challenge, but he has not complied with these orders. I gave the applicant husband an opportunity to make oral submissions to the Court in support of his application, but he also declined this invitation.
This is an interlocutory application by the Minister filed on 13 January 2006. The Minister seeks summary dismissal of the application pursuant to r.13.10(c) of Rules. This rule allows dismissal on the ground that the proceedings are an abuse of process of the Court. Due to the litigation history engaged in by the applicants, set out above in summary form at [7] above, I propose to deal with this application on the basis of an abuse of process of the Court and whether the present application is “plainly untenable and unarguably doomed to failure”: NBGZ v Minister for Immigration [2005] FCAFC 119 at [61] per Allsop J.
The applicants initially sought review of the Tribunal’s decision in this Court before Smith FM, who made the comment in SZDRC & Anor v Minister for Immigration [2004] FMCA 1036 at [13]:
The Tribunal's reasoning is expressed shortly and tersely, but in my view it has adequately addressed the claims made by the applicant. I can find no error of law in its reasoning or procedures.
The applicants exercised their right of appeal to the Federal Court in proceedings NSD11/2005. His Honour Wilcox J dismissed the application on 24 March 2005 and concluded in SZDRC v Minister for Immigration [2005] FCA 333 at [8]-[9]:
I have considered the Tribunal's findings and reasons for decision. I make no comment about the Tribunal's factual findings. It is not for the Court to determine the correctness of the factual findings. However, I have considered whether there is any evident jurisdictional error in the Tribunal's decision. I find none.
The magistrate was correct in dismissing the application for judicial review. The appeal should be dismissed with costs. I so order.
The applicants then exercised their right to seek special leave to appeal to the High Court and filed an application on 18 April 2005 in proceedings S159/2005. On 6 October 2005 Gummow J in SZDRC & Anor v Minister for Immigration [2005] HCATrans 801, made the following observation:
We have reviewed the applicants’ written case and the decisions of the Tribunal, the Federal Magistrates Court and the Federal Court. There is nothing in these materials to suggest that the decision of the Tribunal was attended by jurisdictional error or that the Federal Court erred. Accordingly, special leave to appeal is refused.
The applicants appear to have accepted the finality of their litigation in respect of the Tribunal’s decision. However the new application to this Court has adopted a precedent application which has been circulating recently. This seeks a renewal of litigation, challenging the primary decision of the Minister’s delegate, which had already been affirmed by the Tribunal. The applicants have now availed themselves of such a precedent. I note that a similar approach has been adopted by others. It has come to the attention of this Court and was referred to by Her Honour Barnes FM in SZGKO v Minister for Immigration [2005] FMCA 1254 and His Honour Smith FM in SZGMZ v Minister for Immigration [2005] FMCA 1549 (“SZGMZ”). I made similar observations in a previous decision of SZFRF v Minister for Immigration [2006] FMCA 48.
The application before this Court duplicates the applications considered in SZGMZ and SZFRF v Minister for Immigration, where the delegate’s decisions are challenged on the basis that they are invalid due to alleged failure to file notification procedures under s.66 of the Act.
The current application filed in this Court is plainly an attempt to re-litigate a case already disposed of and it should be dismissed as an abuse of process: Walton v Gardiner (1993) 177 CLR 378 at 393 per Mason CJ, Deane and Dawson JJ:
Thus, it has long been established that, regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail. Again, proceedings within the jurisdiction of a court will be unjustifiably oppressive and vexatious of an objecting defendant, and will constitute an abuse of process, if that court is, in all the circumstances of the particular case, a clearly inappropriate forum to entertain them. Yet again, proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings.
In my opinion, the reasoning of Smith FM in SZGMZ at [22]-[26], clearly addresses and articulates the four reasons, as His Honour put it, why an application such as the present is an abuse of process and has no prospects of success in obtaining the relief it seeks. This application is a persistent attempt by the applicants to bring an unmeritorious application to the Court. I therefore propose to dismiss the present application. In coming to this decision I am also guided by the decision of his Honour Driver FM in NALE v Minister for Immigration [2003] FMCA 366 where the re-invigoration of proceedings may have been pursued to extend the applicant’s stay in this country. Reference was also made in NALE v Minister for Immigration to another decision of Driver FM of Kosi v Minister for Immigration [2003] FMCA 340 [18]:
It would be an abuse of the Court's process to file an application for review simply for the purpose of extending the period of one's stay in Australia. It is well known that there are now extensive delays in obtaining hearing dates in migration cases in this Court. In those circumstances there is potential for the Court's process to be abused by an applicant whose only purpose is to take advantage of that delay.
Conclusion
For the above reasons, I consider the present application is an abuse of process and it is appropriate to dismiss it summarily. I propose to make the orders sought by the first respondent. I also consider that I should give a direction to the Court’s Registry that it decline any further applications from the applicants concerning any aspect of the decision-making process on their protection visa application. If the applicants can demonstrate an issue affecting their current entitlements which has not been decided against them in previous litigation and which requires adjudication about the decision-making, then they would be allowed to commence another proceeding. However, the applicants will have to show a controversy which properly requires the attention of this Court. Regretfully the applicants have obtained these pleadings without clear understanding. Those pleadings lack relevance to their particular situation. The identical pleadings commonly submitted were done so by applicants who were previously before this Court, the Federal Court and the High Court and who have failed in their review application at all levels. This identical application, except for the names and details of the individual case, has been placed before me in three separate interlocutory hearings today.
I order the applicant pay the first respondent’s costs and disbursements of and incidental to the application in the amount of $2,800.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 24 April 2006
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